Should the courts be less deferential to a lousy president than to a competent president?

Yes, say Sanford Levinson and Mark Graber. (But because they are professors, they say “anti-Publian” rather than “lousy”). They counter the view, which they think is conventional (is it?), that the court should enforce the same rules against all presidents. I think the conventional view is really that courts should enforce the same rules against all presidents regardless of their ideological views or party affiliation, not regardless of competence. No one has really thought about the question of presidential competence before, at least outside the narrow context of the 25th amendment. But that said, okay. The idea here is that the courts should not use constitutional doctrine to overrule an election (by ruling against the president on the margin in controversies involving the powers of his office) unless the electorate elects someone who is (or becomes) incompetent.

The next question is whether Trump qualifies as lousy. Levinson and Graber says yes, quoting a bunch of liberal journalists, politicians, and academics, but also a handful of respectable Republicans and conservatives (whose views are nonetheless more measured, and could probably be applied to more than one president). I’m on board, assuming we use a proper definition of lousiness, and if we can prevent our political views from affecting (too much) how we evaluate a president (and not sure we can). It’s too easy to say that the guy we disagree with is dumb, or possibly crazy. You can see Levinson/Graber as extending the 25th amendment deep into the crevices of constitutional doctrine, implicitly arguing that incompetence is a sliding scale, and if the 25th amendment mechanism doesn’t lurch into action, judges can vindicate the underlying idea by ruling against semi- or fully incompetent presidents when they do semi- or fully crazy things.

But it raises questions, maybe more so for the legalist than for the realist, but here they go:

— Should judges “formally” declare the president incompetent (or “anti-Publian,” or “lousy”; choose your adjective)? You can imagine the Supreme Court making such a finding so as to instruct lower courts. But it is hard to imagine, to say the least. If not, then the courts are on their own, and the law is unstated. Perhaps it will be clear enough in Trump’s case that future courts should not follow precedents that narrow the powers of judicially determined incompetent presidents, but what will happen in future when courts disagree about whether a specific president is lousy or not? If courts can’t publicly declare that they ruled against the president because they don’t trust their judgment, and so do so covertly, do we need to worry about confusion and inconsistency, or are these all second order harms when the fate of the Republic is at stake?

— Should judges worry about the inevitable backlash? Trump remains the most powerful man in America, and judges who openly defy him invite retaliation. The reputation of the judiciary has been on the decline for some time; will open rebellion hasten the decline or (as I’m sure Levinson & Graber imagine) reverse it?

— Has the judiciary already declared Trump unfit, implicitly at least, by finding animus in the motivation of the travel ban? The logic of the decisions so far suggest a far-reaching inquiry every time the president engages in any action. Lawyers have already argued that the DACA withdrawal has been tainted by Trump’s anti-Mexican animus. Is the animus inquiry just a doctrinally convenient manner of implementing the Levinson/Graber project without admitting it?

— And, finally, Graber & Levinson claim a “broken constitutional order,” implying the need for radical rethinking of the Constitution, which Levinson has urged for many years. But aren’t they really proposing a narrow doctrinal tweak, in the style of the conventional law professor who seeks from the judiciary doctrinal solutions to all our political problems, and one that will preserve our order, broken or not, through the Trump years rather than motivate needed constitutional reform? Indeed, they argue provocatively but also conventionally that courts should refuse to recognize delegated power to the president unless Congress says explicitly, an argument that, if taken literally, would play havoc with the entire bureaucracy. But can we really trust Congress to step in, as needed? Or is it from a collective standpoint as dysfunctional as Trump is personally?